Alabama Representative Terri Collins, along with 66 cosponsors, has introduced a bill in the Alabama state house which would make abortion a felony in the state of Alabama. As you are well aware, I have been trying to get abortion banned from Alabama ever since I moved back to the state 10 years ago. You would think, then, that I would be ecstatic to see our legislature finally promoting a bill that would accomplish that goal, but this bill is a very dangerous bill. Let me explain why.

The Good

Let’s begin by pointing out the good aspects of this bill. Here they are:

1) The legislative findings section of this bill is excellent. It points out that abortion has never been legal in Alabama, that our state Constitution does not include a right to abortion, that the prenatal child is a legal person in Alabama, that 50 million babies have been killed through abortion since Roe v. Wade, and other important findings of fact.

2) …

Well, actually, that’s about it. There really isn’t anything else that is good about this bill, so let’s just move on.

The Bad

There is a lot in this bill that fits into the bad category.

1) According to this bill, neither killing an ectopic child nor euthanizing a child in the womb who is terminally ill is considered to be an abortion. It is not necessary to kill the child in either of these situations. Ectopic pregnancy can be survived by both the mother and the child, and euthanizing terminally ill patients doesn’t become morally acceptable just because the patient happens to be in his mother’s womb.

2) There are two glaring exceptions to the abortion ban created by this bill. The first is the exception for a medical emergency. This particular exception may seem harmless. Most people think that women should be allowed to kill their own children if those children pose a risk to the mother’s health. But this contradicts the bill’s declaration that the prenatal child is a legal person. If the child is a person, then his life cannot be sacrificed just because his continued existence poses a health risk to another person. If a woman were given a choice between killing her own child and losing one of her kidneys, we would all agree that she should choose to lose a kidney. A child’s life is more valuable than his mother’s kidneys.

3) The second grievous exception to this abortion ban is the exception for a serious health risk to the mother. This may seem to be the same as the exception for a medical emergency, and in fact, the bill lists the presence of a serious health risk as one of the potential reasons for declaring that a medical emergency exists. There is, however, a very important distinction that is made in the bill’s definition of a serious health risk. A serious health risk is defined in the bill as including

“a mental illness which will cause [the mother] to engage in conduct that intends to result in her death or the death of her unborn child.”

In other words, this bill would allow any woman to receive an abortion as long as a psychiatrist is willing to document that continuing the pregnancy would cause her to experience depression along with a desire to kill her prenatal child.

4) This bill prohibits the state from punishing any woman who kills her prenatal child regardless of the extent of her culpability. This is an extremely dangerous (and stupid) provision. The prevention of penalties against a mother who kills her prenatal child is a direct denial of that child’s right to the equal protection of the law as required by our Constitution. It’s also one of the primary reasons that Roe v. Wade was decided in favor of abortion in the first place.

The pro-life attorney tried to argue that the prenatal child was a legal person, but the judges concluded that his argument didn’t make any sense because the abortion ban he was defending did not allow the state to punish a woman who killed her own prenatal child in the same way that the state would punish a woman who killed some other person. The Court concluded that if the state does not give the prenatal child the same protection of the law as born children, then the state does not really hold that the prenatal child is a legal person.

The Ugly

1) This bill does not include a very important declaration that has been included in every pro-life bill which has been passed into law in Alabama. That missing declaration is the simple statement that nothing in this bill shall be construed as creating a right to an abortion. The absence of this language opens up the possibility that this supposed ban on abortion could actually be used to claim that women have a legal right to kill their children under certain circumstances.

2) This bill actually does create a legal right to abortion. The section of the bill which lists the exceptions to the ban begins with the words “an abortion shall be permitted if…” This phrasing establishes that women who want to kill their children have a legal right to obtain abortions that fall within the parameters outlined in this section. This is not just a negative statement announcing the limitations of the bill. It is a positive statement of a right that the state intends to defend. This is a huge step in the wrong direction for Alabama.

3) This bill requires confirmation from a second physician for all abortions performed because of a serious health risk to the mother. However, the attending physician does not have to obtain that confirmation before killing the child. Under the requirements of this bill, an abortionist can kill a child whenever he wants, and he then has a whole six months to find another physician who will confirm that the abortion was done to prevent a serious health risk (including psychological risks) to the mother.

4) There are zero reporting requirements in this bill. While the bill does require a second physician to confirm that the child was killed to prevent a serious health risk to the mother, it does not require the child killer to report his actions to the department of health or any other government agency. In fact, this bill doesn’t even require him to keep the written confirmation in his own records. He is required to obtain the confirmation, but without a reporting requirement, it will be almost impossible for the state to obtain probable cause for pressing charges against anyone who kills a child in an abortion.

Conclusion

And there you have it, folks. The ugly truth about Alabama’s abortion ban is now exposed, and I hope that you agree with me that this is not a good way to end abortion in our state. If the Republicans in Montgomery really wanted to ban abortion, they could do so by passing a bill that I’ve presented to them on multiple occasions. All we have to do to ban abortion in our state is repeal the abortion exceptions to our fetal homicide law. This can be done with a bill that is only one sentence long:

“Be it enacted by the legislature of Alabama that paragraphs (d) and (e) of section 13A-6-1 be repealed.”

That’s it. Passing that one sentence into law would ban abortion in Alabama without any of the dangers of the currently proposed ban. If my bill were to be passed, all abortions without exception would be recognized as the homicides that they actually are.

One of the major points of contention in the discussion of America’s Christian foundation is found in a reference that John Adams made to the “general principles of Christianity.” Those who support the idea that America was founded on Christian principles often present this statement as evidence in their favor, while those who disagree with them usually respond by pointing to the context of the statement as evidence for their position. Unfortunately, most of those discussing Adams’ statement seem to be operating under the impression that it was made in a vacuum. In this article, I will attempt to provide a full analysis of Adams’ letter and demonstrate that when we consider all of the variables in their proper order, it becomes clear that this letter supports the claim that America was founded on principles that are unique to Christianity.

In 1798 and during the Presidency of John Adams, America entered what is known as the Quasi-War with France. Thomas Jefferson was Adams' Vice President, and he was an outspoken opponent of this war. In May of that year, an assembly of young men in Philadelphia made an address to President Adams in response to the XYZ affair in which officials of the French government had demanded a bribe in exchange for peace.

In this address, these young men expressed their disdain for the insults of the French, praised Adams for his wisdom and pledged to give their lives in the service of their country. They also drew a parallel between the actions of the French against America and the actions of the British during the time leading up to the Revolution. This parallel was so distinct in their minds that they claimed to be "Actuated by the same principles on which our forefathers achieved their Independence." It was on the grounds of these principles that they wrote, "As our ancestors have magnanimously resisted the encroachments of the one, we will no less vigorously oppose the attacks of the other."[1]

Of course, this letter was very encouraging to Adams, and he immediately published a response in which he wrote:

"Nothing of the kind could be more welcome to me than this address from the ingenuous youth of Philadelphia in their virtuous anxiety to preserve the honor and independence of their country."

Adams' full response can be read in the ninth volume of The Works of John Adams. In that response, Adams made the following statement:

"Science and morals are the great pillars on which this country has been raised to its present population, opulence, and prosperity; and these alone can advance, support, and preserve it. Without wishing to damp the ardor of curiosity, or influence the freedom of inquiry, I will hazard a prediction, that after the most industrious and impartial researches, the longest liver of you all will find no principles, institutions, or systems of education more fit, in general, to be transmitted to your posterity than those you have received from your ancestors."[2]

Jefferson apparently took offence at this statement, and in a letter to Joseph Priestley a year and a half later, he wrote:

"Pardon, I pray you, the temporary delirium which has been excited here, but which is fast passing away. The Gothic idea that we are to look backwards instead of forwards for the improvement of the human mind, and to recur to the annals of our ancestors for what is most perfect in government, in religion & in learning, is worthy of those bigots in religion & government, by whom it has been recommended, & whose purposes it would answer."[3]

And in another letter, written a year later, he wrote:

"What an effort, my dear sir, of bigotry in politics and religion have we gone through! The barbarians really flattered themselves they should be able to bring back the times of Vandalism, when ignorance put everything into the hands of power and priestcraft. All advances in science were proscribed as innovations; they pretended to praise and encourage education, but it was to be the education of our ancestors; we were to look backwards, not forwards, for improvement; the President himself declaring in one of his answers to addresses, that we were never to expect to go beyond them in real science."[4]

This second letter was somehow obtained by Thomas Belsham and published as part of the collection of correspondences in his book, The Memoirs of the Late Reverend Theophilus Lindsey. Adams managed to read a copy of this book when four of them were brought to Boston in 1813. Upon reading Jefferson's comment, Adams promptly wrote to his former Vice-President and demanded an explanation in the following words:

"The sentiment that you have attributed to me in your letter to Dr. Priestley, I totally disclaim, and demand, in the French sense of the word, of you the proof. It is totally incongruous to every principle of my mind and every sentiment of my heart for three score years at least."[5]

Jefferson responded by saying:

"The readers of my letter should be cautioned not to confine its view to this country alone. England and its alarmists were equally under consideration. Still less must they consider it as looking personally towards you. You happen, indeed, to be quoted, because you happened to express more pithily than had been done by themselves, one of the mottos of the party. This was in your answer to the address of the young men of Philadelphia. One of the questions, you know, on which our parties took different sides, was on the improvability of the human mind in science, in ethics, in government, &c. Those who advocated reformation of institutions, pari passu with the progress of science, maintained that no definite limits could be assigned to that progress. The enemies of reform, on the other hand, denied improvement, and advocated steady adherence to the principles, practices and institutions of our fathers, which they represented as the consummation of wisdom, and acme of excellence, beyond which the human mind could never advance. Although in the passage of your answer alluded to, you expressly disclaim the wish to influence the freedom of inquiry, you predict that that will produce nothing more worthy of transmission to posterity than the principles, institutions and systems of education received from their ancestors. I do not consider this as your deliberate opinion."[6]

Here we see what Jefferson was actually opposing in his letter to Priestley. He was opposed to the idea that the level of human understanding at that time could never be improved upon, and he thought that Adams' response to the young men of Philadelphia conveyed this sentiment. This is the point at which Adams wrote the letter containing his famous statement regarding the general principles of Christianity.[7] (This letter is available online in the tenth volume of The Works of John Adams, and I have provided a link to it in footnote number seven.) Adams asked Jefferson to remember that the young Philadelphians had claimed to be "actuated by the same principles on which our forefathers achieved their independence," and he pointed out that his statement regarding the "great pillars" of the Revolution should be considered as a response to that claim. In this letter to Jefferson, when Adams quoted himself as saying, "the longest liver of you all will find no principles, institutions, or systems of education more fit, in general, to be transmitted to your posterity than those you have received from your ancestors," he emphasized the phrase "in general" and then proceeded to explain what he had meant by referring to general principles.

To explain this statement, Adams first asked the question, "Who composed that army of fine young fellows that was then before my eyes?" Before considering the answer which Adams provided for this question, it is important that we first understand which "army of fine young fellows" he was speaking of. Warren Throckmorton, among others, has erroneously concluded that Adams was "Speaking about the patriots who made up the revolution,"[8] but we can see from a statement appearing later in Adams letter that he was not referring to the army of the Revolution. Adams wrote:

“The general principles on which the fathers achieved independence, were the only principles in which that beautiful assembly of young men could unite, and these principles only could be intended by them in their address, or by me in my answer.”

It is obvious from this statement that the assembly of young men which Adams had before his eyes when writing about general principles was the same assembly which wrote an address to him and to whom he had written an answer. This means that Adams’ listing of the beliefs of these young men should not be understood to be a list of the beliefs of the men fighting in the Revolution but rather a listing of the beliefs which were held by the young men of Philadelphia in 1798. Adams listed those beliefs as:

Now, it is often claimed that, when Adams spoke here of the general principles of Christianity, he was speaking only of principles which are also held by “Deists, Atheists and Protestants who believe nothing,” but this claim overlooks several particulars of Adams’ statement. Before we look at those particulars, however, let me first offer an explanation for the term “Protestants who believe nothing.” Gregg Frazer emphasizes this phrase in his book and mocks it in his speeches to show how ludicrous it is for anyone to think that Adams could have been referring to uniquely Christian principles, but it is quite possible that Adams was referring to a denomination similar to the present-day Churches of Christ (not to be confused with the United Church of Christ). These churches trace their history back to James O’Kelly who, in 1793 “withdrew from the Baltimore conference of his church and called upon others to join him in taking the Bible as the only creed.”[9] The Church of Christ website answers the question, “Does the church of Christ have a creed?” with this statement:

These churches could easily have been called “Protestants who believe nothing” because of their unusual determination not to adhere to any creed, yet their doctrine is still uniquely Christian. If Adams was referring to churches of this type, then there is no need to consider why he listed them as adhering to the general principles of Christianity. We can therefore limit our discussion to the Adams’ reference to Deists and Atheists.

When considering Adams’ reference to Deists and Atheists, it is important to note two additional statements which he made in this letter. First, it is imperative that we not skip over Adams’ statement that these young men were “all educated in the general principles of Christianity.” The second fact to keep in mind is that Adams only referred to the “general principles of Christianity, in which all those sects were united,” but Deists and Atheists cannot properly be considered as members of a sect. The word “sect” refers to “a group within an organized religion whose adherents recognize a special set of teachings or practices.”[11] Thus, when Adams referred to principles “in which all those sects were united,” he was referring to all of those in his list who claimed to be Christians. This conclusion is supported by the fact that immediately after Adams spoke of the general principles of Christianity which united all of the sects, he then added “the general principles of English and American liberty, in which all those young men united.” If by the term “sects” Adams had intended to include all of those in his list, then there would have been no need for him to make a separate reference to the young men. He could have simply written:

“What were these general principles? I answer, the general principles of Christianity and the general principles of English and American liberty, in which all those young men united.”

Adams was attempting to explain his position in clear and unmistakable terms, and in doing so, he intentionally referred to the principles that united the various sects of Christianity and to the principles that united the young men of Philadelphia in 1798. Thus, Adams provided two sets of “general principles on which the fathers achieved independence” – the general principles of Christianity and the general principles of English and American liberty.

These two sets of principles correlate perfectly with Adams’ previous statement that, "Science and morals are the great pillars on which this country has been raised to its present population, opulence, and prosperity.” The general principles of English and American liberty are the pillar that he referred to as science, and the general principles of Christianity make up the pillar which he referred to as morals. That Jefferson would have understood this correlation can be seen in his earlier letter to Priestley in which he referred to Adams’ statement about science and morals as “bigotry in politics and religion.”

At this point in the discussion, we can see clearly that general principals of Christianity which Adams mentioned were not limited to principles that Christians shared with Deists and Atheists. The particular Deists and Atheists that Adams mentioned had all been educated in the general principles of Christianity. They were not members of the sects which held to those general principles, and they were only mentioned as agreeing with the general principles of English and American liberty. This means that when Adams referred to the general principles of Christianity, he would have been including such principles as the existence of God, His intervention in the affairs of men and His revelation to them of His will. This is the only explanation of these principles that makes sense of the opening paragraph of Adams’ letter in which he wrote:

“Poor weak man! when will thy perfection arrive? Thy perfectibility I shall not deny, for a greater character than Priestley or Godwin has said, ‘Be ye perfect.’”

Here, in the same letter from which some would have us believe that Adams thought the general principles of Christianity to be inclusive of deism and atheism, we find Adams himself recognizing the existence of God and the authority of the Scriptures.

At this point, those who disagree with me are undoubtedly sputtering that I have ignored Adams’ reference to Hume, Rousseau and Voltaire, so let’s take a look at that portion of the letter as well.

After mentioning the general principles of Christianity and the general principles of English and American liberty, Adams explained why it is so important to recognize that he was referring to general principles and not specific teachings. In this portion of his letter, he wrote:

“Now I will avow, that I then believed and now believe that those general principles of Christianity are as eternal and immutable as the existence and attributes of God; and that those principles of liberty are as unalterable as human nature and our terrestrial, mundane system. I could, therefore safely say, consistently with all my then and present information, that I believed they would never make discoveries in contradiction to these general principles.”

This statement indicates that the principles which Adams referred to general principles are those principles which we would refer to today as timeless principles. They are principles which are true of all ages of the world – past, present and future. The timeless principles of Christianity would include the statement of Christ that “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and thy neighbour as thyself.”[12] In the category of English and American liberty, these principles would include the statement “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”[13] It was to timeless principles such as these that Adams was referring when he told the young men of Philadelphia that they would never discover principles more fit for passing on to their children.

In his letter to Jefferson, Adams added an additional statement about these general or timeless principles. He wrote:

“In favor of these general principles, in philosophy, religion, and government, I could fill sheets of quotations from Frederic of Prussia, from Hume, Gibbon, Bolingbroke, Rousseau, and Voltaire, as well as Newton and Locke; not to mention thousands of divines and philosophers of inferior fame.”

According to Jonathan Rowe and many other writers, this statement shows that the principles which Adams recognized as the general principles of Christianity can be found in the writings of men like Hume, Rousseau and Voltaire,[14] but that is not what Adams actually said. He did not say that he could provide quotes of these principles from the given list of men. Rather, he said that he could provide quotes “in favor of” those principles. To give a quote from someone in favor of a particular principle does not necessarily mean that the person quoted must himself be in favor of that principle. We could, for example, quote Mark Antony refusing to demonstrate love and forgiveness toward his enemy Augustus and use this quote in favor of the timeless principles of love and forgiveness. In fact, we have a record of Adams doing this very thing. In a letter to his wife, he wrote:

“Our Saviour taught the Immorality of Revenge, and the moral Duty of forgiving Injuries, and even the Duty of loving Enemies. Nothing can shew the amiable, the moral, and divine Excellency of these Christian Doctrines in a stronger Point of Light, than the Characters and Conduct of Marius and Sylla, Caesar, Pompey, Anthony and Augustus, among innumerable others.”[15]

All of the names listed in this letter were examples of men who failed to abide by the principles taught by Christ, and yet Adams lists them as among the best demonstrations of the truth of those principles. He was using their failures to prove the excellency of that principle which they rejected, and it is likely that he was employing this same tactic in his letter to Jefferson. He did not mention the writings of men like Hume, Rousseau and Voltaire as sources of the general principles of Christianity but rather to prove his claim that the principles of Christianity really are eternal and immutable. It is as if he was asking “If the writings of men like Hume, Rousseau and Voltaire can do nothing to refute the general principles of Christianity, then why shouldn’t I say that the young men of Philadelphia will never be able to refute them either?”

Thus, it should be clear that when John Adams said that the founding fathers achieved independence through the general principles of Christianity, he was not referring to principles which are held by men who believe nothing, by Deists and Atheists or by philosophers such as Hume, Rousseau and Voltaire. He was referring to the same timeless principles of the Bible which are “as eternal and immutable as the existence and attributes of God,” but just in case there are those who still hold to the opposite opinion, let’s continue on and give our consideration to the final paragraph of Adams’ letter.

In that paragraph, Adams told Jefferson that he thought his “sentiments were sufficiently known to have protected me against suspicions of narrow thoughts.” He then explained that Jefferson should have been able to ascertain his view on this topic from the preface to his book A Defence of the Constitutions of Government of the United States of America which had been published in 1787. He asked Jefferson to “read again that whole page, and then say whether the writer of it could be suspected of recommending to youth ‘to look backward instead of forward,’ for instruction and improvement.” If we were to fulfill this request ourselves, we would find that not only did Adams recognize the continuous advancement of the sciences, but he also made reference to the timeless principles of Christianity upon which our nation was founded. Here are two excerpts from that preface:

“The people in America have now the best opportunity, and the greatest trust, in their hands, that Providence ever committed to so small a number, since the transgression of the first pair: if they betray their trust, their guilt will merit even greater punishment than other nations have suffered, and the indignation of heaven.”[16]

And:

“It can no longer be called in question, whether authority in magistrates, and obedience of citizens, can be grounded on reason, morality, and the Christian religion, without the monkery of priests, or the knavery of politicians.”[17]

The body of Adams’ book contains many more statements regarding the principles of Christianity, but a mere listing of them would fill an additional four pages of text. For now, however, I will simply leave you with the full assurance that when John Adams said that our nation was founded on the general principles of Christianity, he really was speaking of the principles of Christianity and not just of some watered down list of the ethics which Christians have in common with Atheists.

Ever since the Constitution was first submitted for ratification, the final clause in Article VI has been a matter of strong contention among Americans. That clause, known as the religious test clause, simply states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” It is frequently claimed that this clause represents the desire of the founding fathers to keep religion out of the government and to establish a secular nation. But is that really how this phrase was intended to be used?

To understand the true purpose of the religious test clause, we must hearken back to the Corporation Act of 1661. This was the first of three Test Acts which were implemented in England and which remained in effect until 1828. Under these acts, no one could hold office in England unless he swore an oath of fealty not to God but rather to the doctrines of the Church of England. This was the kind of religious test which the founders prohibited. They had no objection to biblical qualifications. What they objected to was the requirement that all government officials be forced to swear allegiance to the codified doctrines of an established church.

The wisdom of this objection can be illustrated by an examination of the different doctrines of the Christian churches on baptism. Some churches teach that baptism is necessary in order for one to become a Christian while others teach that baptism is not necessary but merely symbolic. There is no reconciliation between these two views. Those holding to the first view often deny the Christianity of those holding to the second and vice versa. Therefore, if the founding fathers had permitted religious tests by saying that only Christians could hold office under the new Constitution, they would have placed us in the difficult position of allowing our government to determine which of these two views on baptism is correct. The churches would immediately have recognized that whichever church managed to obtain a majority representation in the new government would have the power to define all other denominations as non-Christians and force them out of the political arena entirely. This is exactly how the Test Acts were used in England, and it was one of the reasons that so many Christians had fled to America in the first place. Our founding fathers realized that the only way to prevent this abuse of the power of government is to eliminate the religious test requirements altogether.

That this is the view which the founders had in mind can be seen in the statement on this clause by Oliver Ellsworth. Mr. Ellsworth was one of the pivotal drafters of the Constitution, and he later became the third Chief Justice of the Supreme Court. In his defense of the religious test clause, Mr. Ellsworth first explained what was meant by the term “religious test”:

“A religious test is an act to be done, or profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one’s belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissible to a publick office.”[1]

He then proceeded to examine the most basic religious test possible and to demonstrate that it would be wrong for us to have such a test in America.

If any test-act were to be made, perhaps the least exceptionable would be one, requiring all persons appointed to office to declare at the time of their admission, their belief in the being of a God, and in the divine authority of the scriptures … But I answer: His making a declaration of such a belief is no security at all. For suppose him to be an unprincipled man, who believes neither the word nor the being of God; and to be governed merely by selfish motives; how easy is it for him to dissemble! how easy is it for him to make a public declaration of his belief in the creed which the law prescribes; and excuse himself by calling it a mere formality. This is the case with the test-laws and creeds in England … In short, test-laws are utterly ineffectual: they are no security at all … If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”

The final sentence of Mr. Ellsworth’s statement brings us back to our original question. Did the founders include the religious test clause in order to establish a secular government? Not at all. They simply placed the responsibility for the religious character of our government on the shoulders of the people themselves. If we have men in office today who are enemies to the Christian faith, then it is not the fault of the founding fathers but solely that of we the people.

Here are some additional comments from the founding era in regards to the religious test clause:

In an address made to George Washington in 1789 by the ministers of the First Presbytery of the Eastward said:

“Among the objections to the Federal Constitution we have never considered the want of a Religious Test, that grand engine of persecution in every tyrant’s hand.”[2]

Joseph Story addressed this clause in his Commentaries on the Constitution by explaining that it was intended to prohibit laws similar to the English Corporation Act and Test Acts. He then state that:

“It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass test-laws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.”[3]

Tench Coxe expressed a similar view of this clause when he explained that:

“In England every Presbyterian, and other person not of their established church, is incapable of holding an office. No such impious deprivation of the rights of men can take place under the new foederal constitution.”[4]

Oliver Wollcott also understood the religious test clause in this manner when he said:

“For myself, I should be content either with or without that clause in the Constitution which excludes test laws. Knowledge and liberty are so prevalent in this country, that I do not believe that the United States would ever be disposed to establish one religious sect, and lay all others under legal disabilities. But as we know not what may take place hereafter, and any such test would be exceedingly injurious to the rights of free citizens, I cannot think it altogether superfluous to have added a clause, which secures us from the possibility of such oppression.”[5]

We could also consider the statement by Mr. Shute in the Massachusetts Ratifying Convention:

“To object to the latter part of the paragraph under consideration, which excludes a religious test, is, I am sensible, very popular; for the most of men, somehow, are rigidly tenacious of their own sentiments in religion, and disposed to impose them upon others as the standard of truth.”

Then we have this statement from Edmund Randolph, another pivotal member of the Constitutional Convention:

“Although officers, &c. are to swear that they will support this constitution, yet they are not bound to support one mode of worship, or to adhere to one particular sect.”[6]

In addition to these men, the record includes the following statement from Mr. Payson:

“Relying on the candor of this Convention, I shall take the liberty to express my sentiments on the nature of a religious test, and shall endeavor to do it in such propositions as will meet the approbation of every mind. The great object of religion being God supreme, and the seat of religion in man being the heart or conscience, i.e., the reason God has given us, employed on our moral actions, in their most important consequences, as related to the tribunal of God, hence I infer that God alone is the God of the conscience, and, consequently, attempts to erect human tribunals for the consciences of men are impious encroachments upon the prerogatives of God. Upon these principles, had there been a religious test as a qualification for office, it would in my opinion, have been a great blemish upon the instrument.”[7]

And then there is this statement from Mr. Backus:

“I now beg leave to offer a few thoughts upon some points in the Constitution proposed to us, and I shall begin with the exclusion of any religious test. Many appear to be much concerned about it; but nothing is more evident, both in reason and the Holy Scriptures, than that religion is ever a matter between God and individuals; and, therefore, no man or men can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ … Some serious minds discover a concern lest, if all religious tests should be excluded, the Congress would hereafter establish Popery, or some other tyrannical way of worship. But it is most certain that no such way of worship can be established without any religious test.”[8]

In the North Carolina ratifying convention, James Iredell, who was later to become one of our first Supreme Court Justices said:

“I did not expect any objection to this particular regulation, which, in my opinion, is calculated to prevent evils of the most pernicious consequences to society. Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. Under the color of religiuos tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centered in themselves; that they alone had a right to dictate to the rest of mankind; and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit had been, that each church has in turn set itself up against every other…

Were we to judge from the examples of religious tests in other countries, we should be persuaded that they do not answer the purpose for which they are intended. What is the consequence of such in England? In that country no man can be a member in the House of Commons, or hold any office under the crown, without taking the sacrament according to the rites of the Church … The intention was, to exclude all persons from offices but the members of the Church of England. Yet it is notorious that dissenters qualify themselves for offices in this manner, though they never conform to the Church on any other occasion; and men of no religion at all have no scruple to make use of this qualification. It never was known that a man who had no principles of religion hesitated to perform any rite when it was convenient for his private interest. No test can bind such a one…

But it is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude and set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world. The people in power were always right, and every body else wrong. If you admit the least difference, the door to persecution is opened.”[9]

Gov. Johnston rose to speak after Mr. Iredell. Here is his statement in full:

“I read the Constitution over and over, but could not see one cause of apprehension or jealousy on this subject. When I heard there were apprehensions that the pope of Rome could be the President of the United States, I was greatly astonished. It might as well be said that the king of England or France, or the Grand Turk, could be chosen to that office. It would have been as good an argument. It appears to me that it would have been dangerous, if Congress could intermeddle with the subject of religion. True religion is derived from a much higher source than human laws. When any attempt is made, by any government, to restrain men’s consciences, no good consequence can possibly follow. It is apprehended that Jews, Mahometans, pagans, &c., may be elected to high offices under the government of the United States. Those who are Mahometans, or any others who are not professors of the Christian religion, can never be elected to the office of President, or other high office, but in one of two cases. First, if the people of America lay aside the Christian religion altogether, it may happen. Should this unfortunately take place, the people will choose such men as think as they do themselves. Another case is, if any persons of such descriptions should notwithstanding their religion, acquire the confidence and esteem of the people of America by their good conduct and practice of virtue, they may be chosen. I leave to gentlemen’s candor to judge what probability there is of the people’s choosing men of different sentiments from themselves.

But great apprehensions have been raised as to the influence of the Eastern States. When you attend to circumstances, this will have no weight. I know but two or three states where there is the least chance of establishing any particular religion. The people of Massachussetts and Connecticut are mostly Presbyterians. In every other state, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. in New Jersey, they are as much divided as we are. In Pensylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.”

After Gov. Johnston’s speech there was an objection made to the religious test clause by Mr. Caldwell who desired to prevent non-Christians from immigrating to America. He said that:

“Those gentlemen who formed this Constitution should not have given this invitation to Jews and heathens. All those who have any religion are against the emigration of those people from the eastern hemisphere.”

In response to this, Mr. Spencer also voiced his opinion on the matter:

“Gentlemen urge that the want of a test admits the most vicious characters to offices. I desire to know what test could bind them. If they were of such principles, it would not keep them from enjoying those offices. On the other hand, it would exclude from offices conscientious and truly religious people, though equally capable as others. Conscientious persons would not take such an oath, and would be therefore excluded. this would be a great cause of objection to a religious test. But in this case, as there is not a religious test required, it leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place. I confess it strikes me so. I am sorry to differ from the worthy gentleman. I cannot object to this part of the Constitution.”

Gov. Johnston then spoke again, and his comment ended the discussion of this issue. Here is the record of his statement:

“He admitted a possibility of Jews, pagans, &c., emigrating to the United States; yet, he said, they could not be in proportion to the emigration of Christians who should come from other countries; that, in all probability, the children even of such people would be Christians; and that this, with the rapid population of the United States, their zeal for religion, and love of liberty, would, he trusted, add to the progress of the Christian religion among us.”

Supreme Court opinions are often described as being either narrow or broad in their application. An opinion is considered to be narrow if it applies only to the specific case that was brought before the court and other cases just like it. A broad opinion, on the other hand, is an opinion that was written to give guidance to future courts who may have to rule on cases in a similar context. Those who oppose birthright citizenship for the children of aliens often claim that the opinion of the Wong Court was a narrow opinion. They claim that it only applies to the children of permanent residents. The Wong Court itself, on the other hand, presented their opinion as a very broad conclusion which would apply to every child born on American soil.

Before applying their findings to the specific circumstances of the case before them, the Wong Court wrote:

“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”

The Court listed four exceptions to this conclusion which are the only classes of children that could be born within the territory of the United States while still remaining outside of their jurisdiction. Those four exceptions were listed as:

Children foreign sovereigns and their ministers

Children born on foreign public ships

Children born to enemies within and during a hostile occupation of American territory

Children born to the Indian tribes of that time period.

After identifying these as the only exceptions to birthright citizenship, the Court reiterated its previous statement with the claim that:

“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”It is often argued that the children of illegal aliens are not under the jurisdiction of the United States because their parents have never renounced their allegiance to their former country, but as the Wong Court explained:

“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate.”

The Court quoted President Fillmore’s Secretary of State, Daniel Webster who explained:

“Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.”

These are very broad statements which were intended to apply to a wide range of situations and not just to the particular case which was before the Court. Other than the listed exceptions, the Court concluded that “all children here born of resident aliens” were citizens. They applied this rule across the board to “all children born … of all other persons, of whatever race or color, domiciled within the United States.” And the Court concluded that any other interpretation of the Fourteenth Amendment would produce absurd consequences.

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”

In the next section of our discussion, we will verify the Court’s claim by looking at some specific examples of children being natural born citizens even though they were born to alien parents, but for now, it is important to note that the Court applied its view of the Fourteenth Amendment to “thousands of persons.”

This was not a narrow opinion which applied only to the children of permanent residents. The Wong Court correctly recognized that this was a test case, one that was intentionally contrived to eliminate broad classes of individuals from the protections of citizenship; and they ruled accordingly. They declared firmly and without any ambiguity that:

“The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.”

I recently discovered a document from 1796 which confirms the prevalence of birthright citizenship in the early days of the republic. It's a circular that was sent out by Oliver Wolcott Jr. who was George Washington's Secretary of the Treasury. The circular was written and distributed at Washington's request and with the advice of Attorney General Charles Lee and Secretary of State Timothy Pickering. I've uploaded a photo of the entire document below followed by an explanation of its relevance to the birthright citizenship debate.

The first paragraph of the circular refers to the 1796 Act for the Relief and Protection of American Seamen. That Act was designed to protect American sailors from being impressed into the navies of foreign nations. Part of that protection consisted of giving American sailors certificates of citizenship certifying to foreign governments that they were in fact citizens of the United States. Here is the text of from the 1796 Act requiring these certificates to be made available:

"And be it further enacted, That the collector of every district shall keep a book or books, in which, at the request of any seaman, being a citizen of the United States of America, and producing proof of his citizenship, authenticated in the manner hereinafter directed, he shall enter the name of such seaman, and shall deliver to him a certificate, in the following form, that is to say: “I, A. B., collector of the district of D., do hereby certify, That E. F., an American seaman, aged ⁠ years, or thereabouts, of the height of ⁠ feet ⁠ inches, [describing the said seaman as particularly as may be] has, this day, produced to me proof in the manner directed in the act, intituled “An act for the relief and protection of American seamen;” and, pursuant to the said act, I do hereby certify, that the said E. F. is a citizen of the United States of America: In witness whereof, I have hereunto set my hand and seal of office, this day ⁠ of ⁠.” And it shall be the duty of the collectors aforesaid, to file and preserve the proofs of citizenship produced, as aforesaid."

Notice the phrase "authenticated in the manner hereinafter directed." It was this phrase which authorized the publication of the circular from the Secretary of the Treasury. The circular was distributed to every collector of customs in the United States for the purpose of establishing a consistent means of authenticating a sailor’s claim to be an American citizen. The circular began with a list of which categories of seamen were authorized to receive certificates of citizenship. The first category in that list is:

"Free white persons born within the limits of the United States, or of any of them, and free white persons born in any foreign country but actually settled within the limits of the United States on the third day of September in the year one thousand seven hundred and eighty three."

Thus, according to this circular, any white male seaman could request and receive a certificate of citizenship if he had been born within the limits of the United States. However, he could not receive a certificate just by making the claim. He had to provide evidence that his claim was true, and the circular outlined exactly what type of evidence was required for each of the categories of sailors.

The type of evidence required for sailors claiming to have been born in the United States was given as follows:

"Every person claiming citizenship as a native of the United States is to produce an extract from the register of births or baptisms where such is kept, in the civil or religious society to which the applicant belongs, certified by the proper officer of such society in the usual manner, and supported by the affidavit of at least one credible witness testifying that the applicant is the person mentioned in such extract: or if no such extract is produced, the affidavit of at least one credible witness testifying that the applicant was born within the limits of the United States and describing the country and state in which he was born."

Any white sailor could receive a certificate of citizenship if he could produce a record of his birth along with a sworn statement identifying him as the individual mentioned in that record. If he did not have a record of his birth, then he could still receive a certificate of citizenship if he could find a single witness who could testify that he had been born in the United States.

No other evidence was required to prove that a sailor was a native born citizen of the United States. He did not have to prove that either of his parents were citizens. He did not have to prove that he had pledged his allegiance. All he had to do was give evidence that he had actually been born in the United States. Such evidence alone was sufficient to establish him as a natural born American and to entitle him to a certificate of citizenship.

This method of determining citizenship is based on the doctrine of jus soli. Being born on American soil was enough to make these individuals citizens. This was not the case for the other categories of sailors. For example, the fifth category was:

"Children of citizens of the United States or any one of them, born at any place out of the limits of the United States."

The sailors in this category would have been those who claimed that they were not born on American soil, but that they were still citizens because they were born to American citizens. The requirements for establishing the citizenship status of individuals in this category were given as:

"In cases where citizenship is claimed by persons as being children of citizens of the United States, or of any of them, born out of the limits of the United States, the citizenship of the parents under whom the applicants claim, shall be proved as before prescribed in like manner as if the citizenship was claimed by the parents themselves: and further it must be proved by the affidavit of at least one credible witness that they are reputed and believed to be the children of the persons under whom they derive their citizenship."

This method of determining citizenship is based on the doctrine of jus sanguinis. The sailors in this category did not have to prove that they were born on American soil. Instead, they had to prove that their parents were American citizens. But look at how the citizenship of the parents was to be established:

"the citizenship of the parents under whom the applicants claim, shall be proved as before prescribed in like manner as if the citizenship was claimed by the parents themselves."

In other words, the citizenship of the parents of a foreign born sailor was to be established by the exact same method that was used for determining the citizenship of a native born sailor, and we have already seen that the method for determining the citizenship of a native born sailor is based on the doctrine of jus soli. Thus, even though the citizenship of foreign born sailors in this category was determined through a method based on the doctrine of jus sanguinis, that method still reverts back to a method based on the doctrine of jus soli.

Now, one of the arguments that I have received against using this circular as evidence of birthright citizenship is that the circular was published just 13 years after the Treaty of Paris was signed in 1783. This is claimed to be significant because the Treaty of Paris made everyone resident in the United States a citizen of the state in which he resided. Thus it may be argued that every sailor who applied for a certificate of citizenship based on his birth in the United States would have been born before 1783 and thus would have been a citizen because of the Treaty of Paris and not because of his place of birth.

There are multiple flaws in this argument, but perhaps the most glaring one is that there are records of certificates of citizenship being given to boys as young as 10 years of age. Any boy under 13 who received a certificate of citizenship in 1796 would have been born after the Treaty of Paris was signed. And the same would be true for boys under 14 who received certificates in 1797, boys under 15 who received certificates in 1798, and so on.

Are there any records of boys too young to have been born before the Treaty of Paris? Yes there are. The registers that were kept in accordance with the circular tell us that Luke Kimbal received a certificate of citizenship at the age of 10 on September 23, 1796 because he was born in Lisbon, Connecticut. Ichabod Powers also received a certificate of citizenship at the age of 10. His certificate was granted on April 17, 1797 based on his being born in New London, Connecticut. William Cowell received a certificate of citizenship at the age of 12 in February of 1799 based on his birth in Marblehead, Massachusetts. Elias Davis received a certificate at the age of 12 in 1797 because he was born in Gloucester, Massachusetts. Isaac Davis received a certificate at the age of 12 in 1796 because he was born in Groton, Connecticut. Jeremiah Dickinson received a certificate at the age of 12 in 1798 because he was born in New London, Connecticut. William Dow received a certificate at the age of 12 in 1797 because he was born in Manchester, Massachusetts. Etc, etc, etc…

Additionally, we can see from the certificates themselves that mere birth within the territory of the United States was sufficient to qualify any sailor to receive a certificate of citizenship. The certificate issued to Ceaser Shaw in 1795 and the certificate issued to Levi Case in 1817 can be found online as demonstrations of this fact. In both cases, the certificate was issued based solely on the fact that the sailor was born within the territory of the United States. No further proof of citizenship was required. All a sailor had to do to receive a certificate of American citizenship was provide either a record of his birth in America or provide a credible affidavit testifying that he was born in America.

One would think that the ease with which citizenship could be claimed by this method would generate a large amount of fraudulent claims from foreign seamen seeking American protection from impressment, and that was indeed the case. Shortly after Albert Gallatin became the Secretary of the Treasury under John Adams, he sent a letter to then Secretary of State James Madison recommending that the President change the original instructions in the 1796 circular which were still being followed. Gallatin was concerned by the large number of false claims to citizenship, and he wrote:

“The instructions having confined the proof of Natur⟨alization⟩ to copy of a record & admitting the affidavit of on⟨e witness?⟩ to prove citizenship by birth or residence in 1783, it is much more easy for an alien seaman to obtain a protection as a natural born than as a naturalized citizen. Perhaps the collectors might be instructed generally not to grant certificates unless they have received satisfactory pro⟨of⟩ of the birth when citizenship is claimed on that ground.”

Gallatin was not opposed to granting certificates to the sailors who claimed citizenship by birth. He simply wanted a stricter requirement of proof in the hopes that it would lower the number of fraudulent claims. Claims to citizenship by naturalization were required to be proven through documentation, but claims to citizenship by birth and claims to citizenship by residence at the time that the Treaty of Paris was signed only required an affidavit from a credible witness. It was much easier for alien sailors to find a citizen willing to give a false affidavit than to find a forger to produce false documentation. Consequently, many alien sailors attempted to claim American protection from impressment by claiming to have been born on American soil.

David Lenox also sent a similar complaint to James Madison in that same year (1801). According to Lenox, his office in London had received about 500 probable false claims of citizenship in 1799 alone, and he opined that all of those fraudulent claims were claims to have been born within the United States.

These complaints only make sense if the instructions given in the 1796 circular for determining citizenship by birth were founded on the doctrine of jus soli. If the doctrine of jus sanguinis had been the foundational doctrine of American citizenship, then the instructions themselves would have required evidence of parental citizenship even for those claiming to be citizens by birth within the United States. The fact that this requirement was not present and the fact that it was not even assumed (as evidenced by the complaints of fraud) only make sense under the doctrine of jus soli.

This circular letter sent to the collectors of customs in 1796 and the subsequent records of the citizenship of American seamen provide first hand evidence of the prevalence of birthright citizenship during the founding era of our nation. The protection of American sailors was one of the most critical issues that our government faced in the late 18th and early 19th centuries, and this circular played a central role in that issue. Some of the most notable figures of that time were instrumental in either drafting or maintaining the instructions for determining citizenship that are found in this circular, and the collection of certificates identifying seamen as citizens based solely on the location of their birth is by far the largest body of evidence that could be produced by either side of the birthright citizenship debate.

At this point, the Wong Court turned its consideration to the writings of members of the executive branch concerning the legality of birthright citizenship. They began with a letter from Ebenezer Hoar, the Attorney General under President Grant, which had been written to Hamilton Fish, the Secretary of State. In that letter, the Attorney General explained that America had no authority to interfere with the right of other nations to grant citizenship to the children who were born abroad to American parents. He spoke of these children as owing allegiance to the country of their birth even though they were born to American parents.

“I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory.”

The Attorney General then cited the famous Calvin’s Case and concluded that:

“The rule of the common law I understand to be that a person ‘born in a strange country, under the obedience of a strange prince or country, is an alien,’ and that every person owes allegiance to the country of his birth.”

A few years later, the Secretary of State wrote to our minister to Italy that:

“The Fourteenth Amendment to the Constitution declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ This is simply an affirmance of the common law of England and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification, ‘and subject to the jurisdiction thereof’ was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.”

And in 1873, President Grant requested an opinion from Mr. Fish on several questions of allegiance, naturalization and expatriation in regards to American citizens abroad. Mr. Fish first pointed out that:

“Every independent State has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this without regard to the municipal laws of the country whose subjects are so naturalized.”

In other words, Mr. Fish claimed that every nation has jurisdiction over every person within its territory and has the right to make them citizens of itself regardless of whether or not those individuals may still be citizens of some other nation. He explained to the President that Americans traveling abroad owe certain obligations and duties to the nations in which they travel and that any foreign nation can make an American within its borders a citizen without seeking permission from America. The Secretary continued by saying that:

“No sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties thereto, nor can the municipal law of one State interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign State and without the jurisdiction of their own country.”

Here, the claim is that every nation has the right to grant birthright citizenship to any child born within its territory regardless of the nationality of the child’s parents. The nation of which the parents are citizens has no authority to prevent the child from being made a natural born citizen of the nation in which he was born. According to Secretary Fish:

“The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.”

“The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it.”

“Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father.”

The key to understanding Mr. Fish’s view is his recognition that the allegiance of a child born to alien parents is dependent upon the child’s physical location. When he resides within the nation of his birth, he owes his allegiance to the nation of his birth; but when he resides within the nation of his father’s citizenship, he owes his allegiance to his father’s nation. The child’s allegiance is determined by his location and not by his parentage.

The Wong Court came to this same conclusion and wrote:

“These opinions go to show that, since the adoption of the Fourteenth Amendment, the executive branch of the Government, the one charged with the duty of protecting American citizens abroad against unjust treatment by other nations, has taken the same view … holding that such statutes cannot, consistently with our own established rule of citizenship by birth in this country, operate extraterritorially so far as to relieve any person born and residing in a foreign country and subject to its government, from his allegiance to that country.”

After dismissing Judge Miller’s statement in the Slaughterhouse Cases, the Wong Court turned to another case which they described as “the only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof.’” That case was the 1884 opinion given in Elk v. Wilkins.

The Elk Court determined that a person born to an Indian tribe was not entitled to birthright citizenship because he was not born subject to the jurisdiction of the United States. According to the Elk opinion:

“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States, and subject to the jurisdiction thereof' within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”

The key phrase in this explanation is the parenthetical explanation that the Indian tribes were alien powers. Thus, the Court reasoned that, even though the tribes themselves were dependent on the United States, the individuals within those tribes were actually alien subjects and not subjects or citizens of the United States. The Court compared the Indians with “subjects of any foreign government born within the domain of that government.” As far as their citizenship status was concerned, they were in the same condition as a child born within the borders of a foreign government.

The Wong Court recognized this reasoning in the Elk opinion, and observed that the Elk opinion was founded on the grounds

“that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States.”

The Indian tribes of that time were “alien nations” even though they were not “foreign States.” Their lands were possessions of the United States. They occupied those lands with the permission of the United States. But they were still alien nations with their own governments and laws. Therefore, every child born to a member of an Indian tribe was born as a subject or citizen of that tribe and not as a citizen of the United States just as if that tribe were an alien nation outside of the borders of the United States.

A more recent parallel to the relationship which existed between the Indian tribes and the United States can be seen in the occupations of Germany and Japan after World War II. In the American occupation zone of Germany, and throughout occupied Japan, the German and Japanese governments were subject to the control of the United States. In both cases, the United States initiated and enforced political and economic reforms that the occupied regions could not refuse. However, the children born to German or Japanese parents during these occupations did not receive birthright citizenship because Germany and Japan remained alien nations even though they were occupied by and under the control of the United States. Therefore, the children born within the American occupation zone of Germany and the children born within occupied Japan were born under alien jurisdiction and not under American jurisdiction.

Similarly, the Indian tribes were a conquered people whose governments were subject to the control of the United States in accordance with various treaties. And just as in the American occupation zone of Germany and in occupied Japan, the children born to the members of the tribes did not receive birthright citizenship because those tribes remained alien nations even though they had been conquered by and were under the control of the United States. Therefore, the children born among the Indian tribes were born under alien jurisdiction and not under American jurisdiction.

After explaining that the alien nation status of the Indian tribes was the reason for the Indian exception to birthright citizenship, the Wong Court returned to the question of whether aliens residing in the United States were subject to the jurisdiction of the United States. The Court concluded that:

“The real object of … the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words … the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”

To support this conclusion the Court referenced the case of The Exchange v. McFaddon. The Wong Court pointed out that:

“The grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning.”

The Wong Court noted that the McFaddon opinion did not touch on the question of jurisdiction over the Indian tribes and that it did not consider the question of jurisdiction over areas occupied by a hostile military force, but they also noted that:

“In all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.”

The general principle of jurisdiction laid down in McFaddon was:

“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.”In other words, the McFaddon Court claimed that no one within the territorial boundaries of the United States could be exempted from the jurisdiction of the United States unless the United States government had given them permission for that exemption. This means that every individual within the borders of the United States is subject to the jurisdiction of the United States by default. That is the natural condition which exists between an individual and the government of the region in which he is present. To become not subject to the jurisdiction of that government one must receive something from the government that he cannot obtain by his own power. An individual must have the government’s consent before he can be within the government’s geographical boundaries without being subject to that government’s jurisdiction.

The McFaddon Court continued by explaining why ambassadors and foreign ministers are granted this exception by implication because they are directly employed by their own government as its representatives. They then turned to the question of why other aliens are not excepted from the jurisdiction of the government of the land in which they are temporarily located. According to the McFaddon Court,

“When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.”

The McFaddon Court noted that there was not a single, logical reason to assume that aliens other than ambassadors and foreign ministers were not subject to the jurisdiction of the government of the land in which they are temporarily located. The Court even went so far as to say that mere entrance into a nation “can never be construed to grant such exemption.” There must be an additional, declared consent from the government of the land for an alien within that land to be exempt from the government’s jurisdiction.

The Wong Court noted these explanations from the McFaddon Court and said of them that:

“In short, the judgment … declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied … and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.”

In other words, every alien within the borders of the United States is subject to the jurisdiction of the United States unless that alien has received permission from the United States to be exempt from its jurisdiction. The only aliens which receive an automatic or implied exemption are ambassadors and foreign ministers. All other aliens must receive expressly declared consent from the United States before they can be exempted from the jurisdiction of the United States.

The Wong Court found additional confirmation of this view in the language of every single naturalization law which had been passed by Congress. The Court noted that all of our naturalization laws required those applying for citizenship to have resided for a certain length of time “within the limits and under the jurisdiction of the United States.” The Court reasoned from this requirement that the phrase “under the jurisdiction of the United States” in our naturalization laws must therefore apply to aliens who had not yet renounced their allegiance to a foreign government.

In consequence of these considerations, the Wong Court concluded that:

“The words ‘in the United States, and subject to the jurisdiction thereof’ in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words ‘within the limits and under the jurisdiction of the United States,’ and the converse of the words ‘out of the limits and jurisdiction of the United States’ as habitually used in the naturalization acts.”

The Court had recognized an unbroken chain of evidence beginning long before our nation’s independence and continuing up to their time confirming that every individual within the borders of the United States was subject to the jurisdiction thereof except for individuals in three very specific and very limited classes. First, the Indians were not subject to the jurisdiction of the United States because each of their tribes was still an alien nation even though they were a conquered people. Second, hostile enemy military forces were not subject to the jurisdiction of the United States. And third, ambassadors and foreign ministers were not subject to the jurisdiction of the United States because they had consent from the government to be present without subjection. No other individuals or classes of individuals within the geographical borders of the United States were exempt from being subject to the jurisdiction thereof.

Because of this lengthy chain of evidence, the Court declared that:

“It is impossible to construe the words ‘subject to the jurisdiction thereof’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States.’”

Thus, according to the Wong Court and in light of some very compelling evidence, the phrase “subject to the jurisdiction thereof” in the 14th Amendment currently includes every alien within the geographical borders of the United States except for hostile enemy combatants engaged in war against the United States and ambassadors and foreign ministers engaged in diplomatic relations with the United States. All other aliens currently within our borders are subject to the jurisdiction of the United States.

After presenting the history of citizenship in America and concluding from that history that America had always had a jus soli foundation for citizenship, the Court moved on to address the phrase “subject to the jurisdiction thereof” which has been the focus of so many of our modern debates on birthright citizenship. The Court began its consideration of this phrase with a look at an 1873 Supreme Court opinion known simply as The Slaughterhouse Cases.

The Wong Court focused on a statement made by Justice Miller in the Slaughterhouse opinion. At one point in that opinion, Justice Miller wrote:

“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

This single statement from the Slaughterhouse Court has been latched onto by opponents of birthright citizenship, and it has been quoted repeatedly throughout the modern debate on the meaning of the phrase “subject to the jurisdiction thereof.” The Wong Court, however, dismissed the value of this statement for several reasons that we should also consider.

First, the Court pointed out that the above quotation contradicts another statement made by Justice Miller just a few sentences later. In speaking of the distinction between citizens of the United States and the citizens of an individual state, Justice Miller pointed out that a man:

“must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.”

There appears to be a conflict between this statement and Justice Miller’s earlier claim. Here, he seems to be saying that anyone born within the United States is a citizen of the United States, but in the previous statement, he appears to be claiming that only those which are born to parents who are residing in the United States and who are not citizens of any other government are born as citizens of the United States. According to the Wong Court, the reason for this apparent contradiction was that Justice Miller’s first statement about the intent of the phrase “subject to the jurisdiction thereof

“was wholly aside from the question in judgment and from the course of reasoning bearing upon that question,” and thus “it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase.”

The Court quoted Chief Justice Marshall as explaining that:

“It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

To put it in simpler terms: Justice Miller only referenced the intent of the phrase “subject to the jurisdiction thereof” in passing and did not give it his full attention since that phrase was not the main focus of his opinion. Had he studied the phrase more carefully, he may have come to an entirely different conclusion. The Wong Court dismissed Justice Miller’s explanation of this phrase on the grounds that he did not give it the full consideration necessary to establish his explanation as a valid point of law. The Court pointed out that Justice Miller’s explanation “was unsupported by any argument, or by any reference to authorities,” and such support would have been necessary for Justice Miller’s statement to be adopted by future Courts.

But the Wong Court didn’t stop with that dismissal. They also demonstrated that none of the Justices of the Slaughterhouse Court itself accepted Justice Miller’s explanation as anything more than mere opinion. The Wong Court pointed out that all but one of the justices from the Slaughterhouse Court were still on the bench two years later when they gave unanimous consent to another ruling which briefly referenced the citizenship clause of the Fourteenth Amendment. In that later ruling of Minor vs. Happersett, the Court wrote:

“At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.”

The Wong Court did not find it necessary to explain how this quotation demonstrates that none of the justices of the Slaughterhouse Court

“understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment.”

However, their reasoning is not difficult to follow.

If Justice Miller’s explanation that the phrase “subject to the jurisdiction thereof” was intended to exclude “the children of … citizens or subjects of foreign States born within the United States” was a valid explanation of the citizenship clause of the Fourteenth Amendment, then the justices of the Minor Court would not have said that the doubts about recognizing birthright citizenship for these children still needed to be solved. The fact that the Minor Court considered the question of birthright citizenship for the children of non-citizen parents to be unresolved proves that the justices of that Court did not accept Justice Miller’s previous explanation as a solution to that question. The Wong Court determined that, if the very same justices who gave us the Slaughterhouse opinion also declared that their Slaughterhouse opinion did not resolve the question of whether the children of non-citizen parents were entitled to birthright citizenship, then it would be foolish for any other Court to assume that this question had been resolved by the Slaughterhouse opinion.

The Latin phrase jus sanguinis means “the right of blood,” and it is used as a reference to the theory that children should inherit the citizenship status of their fathers regardless of the location of their birth. The Wong Court considered this doctrine and rejected the claim that this view of citizenship was the foundational view of citizenship in America.

The Court began their repudiation of jus sanguinis with a quotation from James Kent, one of the early Chancellors of New York whose opinions formed the basis of American equity jurisprudence. In writing about birthright citizenship, Chancellor Kent wrote that natural born citizens are:

“all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent.”

By noting that the citizenship status of the children was determined “without any regard or reference to the political condition or allegiance of their parents,” the Chancellor was rejecting the doctrine of jus sanguinis. According to Chancellor Kent, the location at which a child is born is the primary factor which determines the child’s status as a citizen. And speaking of the same topic in another location, he indicated that the doctrine of jus soli or “the right of the soil” was the default view of citizenship throughout the United States. The Chancellor wrote:

“I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary.”

The Court also quoted from Horace Binney’s 1853 publication The Alienigenæ of the United States Under the Present Naturalization Laws. In this book, Mr. Binney pointed out that:

“The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”

Mr. Binney, and thus the Supreme Court, recognized that the doctrine of jus soli was the foundational doctrine of American citizenship and not the doctrine of jus sanguinis.

In regards to the doctrine of jus sanguinis, the Court noted that:

“It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.”

However, after examining the citizenship laws of the European nations, the Court concluded that there was:

“little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.”

The only example of jus sanguinis that the Court found which had been implemented early enough to have had any effect on the meaning of the citizenship clause of the Fourteenth Amendment was the 1807 Code of Napoleon. Under Napoleon, French law adopted the doctrine of jus sanguinis as the foundational doctrine of their citizenship laws. The Court noted, however, that France had relied almost exclusively on the doctrine of jus soli before Napoleon’s rise to power. To support this claim, the Court quoted the eminent Robert Pothier who wrote of French citizenship in the 18th century that:

“mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil.”

The Court further noted that:

“The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799.”

Thus, the Court came to the conclusion that the adoption of jus sanguinis during the Napoleonic era was an aberration rather than the norm in French law in particular as well as in European law in general.

The Court did note, however, that the doctrine of jus sanguinis had played a minor role in the citizenship laws of both England and America. According to the Court:

“Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.”

In other words, in both England and America the doctrine of jus sanguinis has been used solely to grant citizenship to children born to citizens abroad. The Court quoted from four sequential laws passed by the United States Congress which utilized the doctrine of jus sanguinis in this manner.

The Naturalization Act of 1790 applied this doctrine to “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States.” The 1795 act by the same title applied jus sanguinis to children who were born to American citizens “out of the limits and jurisdiction of the United States,” and the statutes of 1802 and 1855 adopted the same language.

These were the only four instances of the doctrine of jus sanguinis being enacted into law by Congress prior to the Fourteenth Amendment, and all four of these laws limited the application of jus sanguinis to children who were born outside of the jurisdiction of the United States. In the words of Wong Court:

“Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.”

In continuing their review of the history of birthright citizenship in America, the Court also quoted from Justice Story’s landmark publication Commentaries on the Conflict of Laws Foreign and Domestic. The quotation noted by the Court was:

“There are certain principles which have been generally recognized by tribunals administering public law, or the law of nations, as of unquestionable authority. First, persons who are born in a country are generally deemed citizens and subjects of that country.”

Now, critics of the Court’s ruling in U.S. vs. Wong Kim Ark often point out that the Court neglected to consider the exception that Justice Story suggested for this particular principle. We will look at this objection more closely in a later section, but we should note for the time being that, while Justice Story did mention an exception to this general principle, he was very careful to point out that the exception was just his personal opinion and not a universally recognized principle. The general principle which enjoyed near universal acceptance was that “persons who are born in a country are generally deemed citizens and subjects of that country.”

The Court then referenced the 1824 case McCreery vs. Somerville which “assumed that children born in that State of an alien who was still living, and who had not been naturalized, were ‘native-born citizens of the United States.’” The Court also quoted from the 1866 case United States vs. Rhodes which had been decided on the circuit court level. In that case, Justice Swayne wrote that:

“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”

As we noted previously, allegiance is the duty that an individual owes to a government in exchange for the protection of that government’s laws. Thus, the condition of being born in the allegiance of the United States is a condition that exists for every child born in America who does not possess some kind of immunity from American laws such as the immunity possessed by children born to foreign ambassadors. Thus, according to Justice Swayne, the common law of the United States was that all children born within the territorial boundaries of the United States were citizens of the United States except for the children born to foreign ambassadors or to foreign enemies occupying American soil.

The Wong Court also referenced an 1805 decision from the Supreme Court of Massachusetts which:

“held that the determination of the question whether a man was a citizen or an alien was ‘to be governed altogether by the principles of the common law,’ and that it was established, with few exceptions, ‘that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term citizenship.’”

Once again we see that birthright citizenship in the United States is a product of the allegiance that the child owes to the government because of the protection which that child is afforded by the laws of the United States. This reciprocal relationship between allegiance and protection is the foundational principle of citizenship.

The Court then cited a case from the Supreme Court of North Carolina which concluded that:

“Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens … all free persons born within the State are born citizens of the State … The term ‘citizen,’ as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before was a ‘subject of the king' is now 'a citizen of the State.’”

There are several significant statements in this quotation. First, we find that the British common law regarding birthright citizenship was fully adopted by North Carolina with the only difference between the two being the use of the term “citizen” in the latter in place of the term “subject” in the former. Additionally, this case directly equates the concept of being “born within the dominions” of a government with the concept of being born with an allegiance to that government. And by saying that all free persons “born within the state are born citizens of the State,” the North Carolina court revealed that the idea of granting birthright citizenship to every child born within the territorial boundaries of a given government had in fact been put into practice prior to the ratification of the 14th Amendment.

All of these proclamations from the judicial branch provided overwhelming affirmation of the Wong Court’s claim “That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth.”